SHAMANNA SETTY Vs. B L CHANNEGOWDA

JUDGEMENT

(1.) THIS is a defendant's appeal. The respondent herein was the plaintiff in O. S. No. 3438/1980 on the file of the City Civil Judge, Bangalore. He filed a suit against the defendant for declaration of his title, possession and for mandatory injunction and also for mesne profits. The suit filed by the plaintiff was dismissed on merits on 8-1-1988. Being aggrieved by the judgment and decree of the Trial Court dated 8-1-1988, the respondent - plaintiff had filed an appeal before this Court in r. F. A. No. 361/1988. The Learned Judge of this Court on 25th September 1998 allowed the appeal in part and set aside the judgment and decree of the Trial Court and remitted the matter to the Trial Court with a direction to appoint a survey Commissioner at the instance of the plaintiff to locate the properties covered under the sale deeds and then to dispose of the matter in accordance with Law. This Court also directed the parties to adduce further evidence if any. With the above directions, the appeal was allowed. Pursuant to the directions of this Court, the trial Court appointed Asst. Director of Land Records and Survey Settlement as Commissioner on the application filed by the plaintiff. A surveyor one Narayan Incharge Supervisor executed the warrant and he submitted his report. Thereafter one P. L. Venkatesh Murthy was examined as cw-1. According to him he was working as an ADLR. Bangalore Sub-Division till 13-6-2002 and thereafter he has handed over charge to one B. S. Venugopal, who has been examined as cw-2 and P. L. Venkatesh Murthy deposed that he had not executed the warrant. CW-2 venugopal also deposed the Court that he has not carried the work personally and he is not aware of commission work. The commission work was executed by one Narayana and he has only sent the report submitted by Narayana, who was examined as CW-3, the Trial Court relied upon the evidence of CW-3 and has decreed the suit of the plaintiff. Being aggrieved by the judgment and decree of the Trial Court the present appeal is filed by the defendants.

(2.) I have heard the learned Counsel for both the parties.

(3.) THOUGH several grounds are urged by the learned Counsel for the appellant in his appeal memo, at the time or argument he raised an important question in regard to the right of Narayan cw-3 to execute the warrant and accepting of such report of CW-3 by the Court contending that the report submitted by Narayan is without jurisdiction and the Trial Court without considering this fact relying upon the report submitted by CW-3 Narayan has decreed the suit. Therefore the contends that the appeal has to be allowed only on this short ground.